Hicks v. Graves Truck Lines, Inc.

• Decision Date: 04 March 1986
• Docket Number: No. WD,WD
• Citation: 707 S.W.2d 439
• Parties: Frank Lee HICKS, and Mid-City Truck Painting and Reconditioning, Inc., and Mary Hicks, Plaintiffs-Appellants, v. GRAVES TRUCK LINES, INC., and James Westerfield, Jr., Defendants-Respondents. 36842.
• Court: Missouri Court of Appeals

Page 439

707 S.W.2d 439

Frank Lee HICKS, and Mid-City Truck Painting and Reconditioning, Inc., and Mary Hicks, Plaintiffs-Appellants, v. GRAVES TRUCK LINES, INC., and James Westerfield, Jr. Defendants-Respondents.

No. WD 36842.

Missouri Court of Appeals Western District.

March 4, 1986.

Robert J. Wise, Krigel & Krigel, P.C., Kansas City, for plaintiffs-appellants.

Steven J. Borel, Lee M. Smithyman, Kansas City, Kan., for defendants-respondents.

Before CLARK, C.J. Presiding, and TURNAGE and KENNEDY, JJ.

CLARK, Chief Judge.

This suit for property damage to an automobile and a counterclaim and cross-claim for personal injuries arose out of an automobile truck collision in Kansas. The parties were the Missouri resident automobile owner, the Kansas corporation trucking company licensed and admitted to do business in Missouri, the Missouri resident truck driver and, as a third party defendant, the Missouri resident automobile driver. The case was tried to a jury which was instructed on apportionment of fault according to Kansas law. The jury verdict found the automobile driver 60% at fault and the truck driver 40% at fault. Under the principles of Kansas law, the consequence was no award of damages to the automobile owner. The latter and the third party automobile driver appeal.

The accident occurred August 14, 1981 when the automobile and the truck collided on a bridge. Both vehicles were west bound, the truck in the left lane and the auto to its right. The dispute as to the cause of the accident, a matter not at issue on this appeal, was whether the automobile first struck the side of the bridge and was then thrown in the path of the truck or whether the truck drifted into the right-hand lane and crowded the car between it and the bridge. Frank Hicks was apparently the owner of the car, a subject addressed below, Mary Hicks was the driver, Graves Truck Lines, Inc. owned the truck and James Westerfield, Jr., who asserted a personal injury claim, was the truck driver.

The case was submitted using, in the main, Pattern Instructions of Kansas (P.I.K.). These included a comparative fault instruction based on the Kansas statute which provides a system of modified comparative fault. K.S.A. 60-258a (1983). Under Kansas law, a party may recover damages ratable to his proportion of fault in the occurrence, but only if his negligence was less than that of the party against whom the claim is made. Under this formula, plaintiff automobile owner here was denied any recovery because the auto driver was determined by the jury to have been more at fault than Westerfield, the truck driver. Appellants contend the trial court erred in using the P.I.K. forms for a case tried in Missouri and in applying the Kansas statute of modified comparative fault.

Before addressing the points raised on appeal, it is necessary to consider the status of Mid-City Truck Painting & Reconditioning, Inc. as an appellant. Mid-City entered the case as an additional plaintiff in the first amended petition under which the case was tried. The first petition had alleged Frank Hicks was the owner of the automobile. In the amended petition, which retained Hicks as a plaintiff, it was alleged Mid-City owned the car. At trial, no mention was made of Mid-City either as owner of the auto or as the employer of Mary Hicks. Frank Hicks testified he owned the car and Mary Hicks said she worked for Frank. Appropriate to this evidence, no provision was made in the instructions for the jury to return a verdict for or against Mid-City and the judgment entered makes no mention of Mid-City. In consequence, Mid-City is not aggrieved by the judgment and has no standing to appeal. Section 512.020, RSMo. 1978. The appeal of Mid-City Truck Painting & Reconditioning, Inc. is dismissed. The points on appeal by Frank Hicks and Mary Hicks all relate to claims of instruction error. They are grouped by common subject matter.

CHOICE OF LAW OF COMPARATIVE FAULT

The preeminent point presented for decision is posed by appellants' contention that the trial court erred in applying Kansas law of apportionment of fault. The Kansas law prescribed by statute differs from Missouri law of apportionment of fault as declared in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), in that the Missouri rule allows a negligent claimant to recover proportionate damages even though his fault may have been greater than that of the other party. Applied to the present case where the jury found Frank Hicks' property damages to have been $12,250.00, under Missouri apportionment of fault, Hicks recovers $4,900.00 whereas under Kansas law he is not entitled to any damages.

The parties assert this question of choice of law in applying a standard of apportionment of fault is one of first impression in this state. Independent research has not revealed any Missouri decision in point. Appellants rely on Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969) as authority. That case holds the outdated concept of lex loci delicti is no longer to be used in Missouri. The opinion adopts the standard of the Restatement (Second) of Conflicts of Laws, § 145 (1971). Respondents answer this argument by saying the law of damages embodied in K.S.A. 60-258a is substantive and therefore must be applied because the location of the accident was in Kansas.

The rationale of Kennedy v. Dixon, apart from its declaration that lex loci delicti is no longer a viable doctrine, employs the Restatement significant contacts concept. Under that rule, a choice of law is made based on the predominance of contacts with the state whose law is to prevail. The contacts to be taken into account are:

"(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered."

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

In Kennedy v. Dixon, the Restatement doctrine found ready application because the only significant contact with Indiana was the accident situs. There was no state interest in Indiana referable to enforcement of its automobile guest statute in a contest in Missouri courts between Missouri residents. An entirely different problem arises when the Restatement test reveals significant contacts with two states and a legitimate interest in both states to apply local law to the controversy in suit.

The facts of this suit present such a case. Significant Missouri contacts were: (1) Owner Frank Hicks and driver Mary Hicks were Missouri residents as was the truck driver, Westerfield, (2) The damaged Oldsmobile, the subject of the claim, was licensed in Missouri and presumably garaged in Missouri, (3) The business by which Mary Hicks was employed was sited in Missouri from which location her mission on the day of the accident originated and to which she would have returned. The Kansas contacts were: (1) Kansas was the place where the conduct complained of occurred and where the damage was sustained, (2) Graves Truck Lines, the party sought to be held liable for the claim is a Kansas corporation and has its place of business in Kansas.

The legitimate state interest of Missouri in application of Missouri comparative fault rules arises from a policy of compensating Missouri residents in the courts of this state in the manner which this state's laws have declared. The policy is particularly applicable where, as here, the Kansas accident location was fortuitous and unrelated to any other relationship of the parties. The Kansas state interest, however, must also be recognized. That interest is the entitlement of Kansas to shield its residents from the effects of torts committed in the state if the claimant is found to have been the more at fault. Thus, the present case is not susceptible of decision based merely on application of Kennedy v. Dixon because, first, there is no overbalancing of Restatement contacts favoring Missouri or Kansas and, second, legitimate state interests of both Kansas and Missouri are involved.

Upon careful analysis, Kennedy v. Dixon is found not to be a true choice of law case. This follows from the discussion in the opinion which demonstrates that no significant Restatement contacts with Indiana were present and no legitimate application of Indiana state interests were at issue. A real choice of law problem is presented when the contacts of both states with the event are sufficient under the Federal Constitution to permit each state's law to be applied. Leflar, American Conflicts Law, § 93, (3rd Ed.1977). This is the issue in the present case not controlled by Kennedy v. Dixon or any other reported Missouri case. We turn, therefore, to consideration of decisions in other states.

When faced with this problem, some states have reverted to a rigid formula. Thus, in State Farm Mutual Automobile Insurance Company v. Olsen, 406 So.2d 1109 (Fla.1981), the question was whether Florida or Illinois law should apply to decide the rights of a Florida motorist against his insurer when the Florida vehicle collided with an uninsured driver in Illinois. The court recognized its adoption of the Restatement, § 145, in prior decisions but ruled the case was controlled by Illinois law. The decision pays lip service to the significant contacts theory but decides the case essentially on lex loci delicti, "for reasons of uniformity and ease in determination and application of the law." Id. at 1111. A dissent in the case focuses on this feature.

A Kentucky case, Foster v. Leggett, 484 S.W.2d 827 (Ky.App.1972), announces a theory which gives general preference to the law of the forum state. Plaintiff's decedent, a Kentucky resident was killed in an automobile accident which occurred in Ohio. The driver of the car in which the decedent was a passenger...